Opinion
2017-1887 W CR
02-20-2020
The PEOPLE of the State of New York, Respondent, v. Fuquan TAYLOR, Appellant.
Thomas T. Keating, for appellant. Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
Thomas T. Keating, for appellant.
Westchester County District Attorney (Christine DiSalvo and William C. Milaccio of counsel), for respondent.
PRESENT: THOMAS A. ADAMS, P.J., BRUCE E. TOLBERT , JERRY GARGUILO, JJ
ORDERED that the judgment of conviction is reversed, on the law, the guilty plea is vacated, the felony complaint is reinstated, and the matter is remitted to the Justice Court for all further proceedings on the felony complaint.
Defendant was initially charged in a felony complaint with assault in the second degree ( Penal Law § 120.05 [2] ). Thereafter, pursuant to plea negotiations, the felony charge was purportedly reduced to assault in the third degree ( Penal Law § 120.00 ), and defendant then pleaded guilty to the further reduced charge of harassment in the second degree ( Penal Law § 240.26 [1] ). On appeal, defendant contends that the Justice Court failed to make the required statutory inquiry into whether a reduction was warranted and failed to follow the statutory requirements of CPL 180.50 for the proper reduction of the felony charge. Additionally, he contends that the Justice Court failed to advise him, prior to his entering a guilty plea, that his plea may subject him to adverse immigration consequences.
Although the issue of whether the felony complaint was properly reduced was not raised in defendant's affidavit of errors, claims of jurisdictional defects, such as the present one, do not have to be raised in an affidavit of errors in order to be reviewable on appeal (see People v. Nicometi , 12 NY2d 428, 430 [1963] ; People v. Hudson , 63 Misc 3d 137[A], 2019 NY Slip Op 50525[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2019]; People v. Sloane , 59 Misc 3d 143[A], 2018 NY Slip Op 50697[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ).
An attempted reduction of a felony complaint not done pursuant to the requirements of CPL 180.50, even if acquiesced to by the court, the prosecution and defendant, is invalid and of no legal effect (see People v. Kane , 57 Misc 3d 35 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v. Grune , 164 Misc 2d 1047 [App Term, 2d Dept, 9th & 10th Jud Dists 1995]; People v. Minor , 144 Misc 2d 846 [App Term, 2d Dept, 2d & 11th Jud Dists 1989] ). Here, the record demonstrates, and the People concede, that no new accusatory instrument charging defendant with the misdemeanor of assault in the third degree was filed with the court (see CPL 180.50 [3] [a] [i], [ii] ; [b] ) and no notations were made to the face of the felony complaint indicating such reduction (see CPL 180.50 [3] [a] [iii] ; [b] ). Consequently, the felony complaint was not properly reduced or converted (see People v. Klein , 42 Misc 3d 141[A], 2014 NY Slip Op 50212[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2014] ). Thus, the reduction of the felony complaint was of no legal effect and the felony complaint remains pending (see Kane , 57 Misc 3d 35 ; People v. Stinson , 22 Misc 3d 136[A], 2008 NY Slip Op 52662[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Minor , 144 Misc 2d 846 ). This defect is nonwaivable, and, therefore, a plea of guilty does not constitute a waiver of the requirement that a felony complaint be reduced or converted in accordance with the provisions of CPL 180.50 (see People v. Spooner , 22 Misc 3d 136[A], 2008 NY Slip Op 52664[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008]; Stinson , 22 Misc 3d 136[A], 2008 NY Slip Op 52662[U] ; People v. Grune , 175 Misc 2d 281 [App Term, 2d Dept, 9th & 10th Jud Dists 1997] ).
In light of the above, defendant's remaining contention on appeal is rendered moot.
Accordingly, the judgment of conviction is reversed, the guilty plea is vacated, the felony complaint is reinstated, and the matter is remitted to the Justice Court for all further proceedings on the felony complaint.
ADAMS, P.J., TOLBERT and GARGUILO, JJ., concur.